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NAVY | DRB | 2007_Navy | ND0700019
Original file (ND0700019.rtf) Auto-classification: Denied
ex-AA, USN
ND07-00019
Current Discharge and Applicant’s Request:

 Application Received:                               20 0 61006
         Characterization of Service:             
         Reason for Discharge :                      PATTERN OF MISCONDUCT
         Discharge Authority :                       MILPERSMAN 1910-140
         Duty Assignment/ Command at Discharge:    PATROL SQUADRON FIVE, JACKSONVILLE, FL

Applicant’s Request:    
         Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
         Representation:                             
         Issues (as summarized by NDRB):           1. Reenlist
                                                      2. Educational benefits
                                                      3. Post service - family
        

Decision:

 By a vote of the Characterization shall .     
By a vote of the Reason for Discharge shall - .
Date of Decision:                                            20 070816      
Location of Board:                                  Washington D.C.
Complete Service Record:                                   
Complete Medical Record:                          
Complete Discharge Package:                       

Regarding propriety, the Board found the discharge:     
Regarding equity, the Board found the discharge:        


Discussion

 Issues 1 and 2 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Decisional Issues:

Issue 3 ( ):

The NDRB is authorized to consider post-service factors in the re characterization of a discharge . However , there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life , subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided his statement of apology and responsibility for his actions wherein he declares being responsible for a family as documentation of his post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the characterization of his service at the time of discharge.

Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the n aval service. Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of disciplin e in the United States Navy. A general (under honorable conditions ) characterization of service is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by three nonjudicial punishment proceedings for violations of UCMJ Article s 86 ( unauthorized absence ) , 91 (insubordinate conduct), 92 ( failure to obey ), Article 1 28 ( assault ) and 134 (disorderly conduct) as well as a civilian conviction for domestic battery and a retention warning. These Nonjudicial punishments form the basis for the Applicants administrative discharge based on a pattern of misconduct which is defined as two or more nonjudicial punishments during the same enlistment. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade in his characterization of service.


Summary of Service:

 Prior Service:
 Inactive: USNR (DEP)                                20020815 - 20020827
Active:

Period of Service Under Review :
Date of Enlistment:                                 20020828
Years Contracted :                                  
Date of Discharge:                                  20051123
Length of Service
         Active:                                      3 Yrs 2 Mths 26 D ys ( d oes not exclude lost time)
         Inactive:                                            0 Yrs 0 Mths 0 D ys
         Time Lost During This Period:            
Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 34
Highest Rate/Rank:                                   AN
Performance Evaluation Averages (number of marks):
                                                       Performance : 2.6 Behavior : 2. 0 OTA : 2.41 (6)

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL


Service Record Entries Related to Characterization of Service or Reason for Discharge

 200 30 305 :        NJP for violation s of UCMJ:
          Article 134 : Disorderly conduct/drunkenness.
         Article 128 : Assault.
         Award: Forfeiture of ½ month pay for 2 months , extra duty for 45 days . All suspended for 6 months.
         
20050124 :        NJP for violation of UCMJ:
          Article 92 : Failure to obey order or regulation on 20050108 .
         Award: Reduction to E- 2 . Reduction suspended for 6 months.
        
20050124:        Retention Warning: Advised of deficiency ( Violation of UCMJ, Article 92: Failure to obey order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
20050821:        Applicant arrested by for domestic battery.
20050822:        Civil Conviction: Duval County Court of Florida for violation of domestic battery .
          Plea: Plead no contest.
          Sentence: Twelve month probation, enroll and complete a Batterers’ Intervention Program, approximately $592.00 in fines and time served. [Details extracted from Commanding Officer’s letter dated 20051122.]

20051117 :        NJP for violations of UCMJ:
         Article 86: Absence without leave.
         Article 91 : Insubordinate conduct toward Petty Officer.
         Award: R estriction and extra duty for 45 days , reduction to E- 2 .
        

Elements of Discharge: [INVOLUNTARY]

 Date Notified :                                        20051117
Reason for Discharge                                - PATTERN OF MISCONDUCT
                                                      -
                                                      -
Least Favorable Characterization Authorized :    

Date Applicant R esponded to N otification:                 20051117
Rights E lected at N otification :
Consult with Counsel                      
Obtain Copies of Documents                
Submit Statement(s) (date)                         
Administrative Board                      
GCMCA Review                               

Separation Authority (date):      COMMANDING OFFICER, PATROL SQUADRON FIVE ( 20051122 )
         Reason for discharge directed :             -
                                                      MISCONDUCT - CIVILIAN CONVICTION
                                                      MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
         Characterization directed:                        
Date Applicant Discharged:                         20051123


Additional Documents Submitted by Applicant and Considered By Board

 Total Number of Pages:                               4

Related to Period of Service Under Review :
          From Service and/or Medical Record :                Other Records :  

Related to Other Period (s) of Service:
         From Service and/or Medical Record:               Other Records:   

Related to Post-Service Period:
          Employment:                                           Finances:        
         Health/Medical Records:                             Substance Abuse:        
         Family/Personal Status:                             Education:       
        Community Service Efforts:                         References:     
         Criminal Records:                         

Other:
          Additional Statements From Applicant :             From Representative:    
        Other Documentation (Describe)                  


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.
B . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II , Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91 (insubordinate conduct), 92 (failure to obey) , and 128 (assault).       .


Record of Vote

ADDENDUM: Information for the Applicant
Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the application is received at the NDRB within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employment / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                                    Secretary of the Navy Council of Review Boards
                                     Attn: Naval Discharge Review Board
                                     720 Kennon Street SE Rm 309
                                    Washington Navy Yard DC 20374-5023

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